This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

Summer 2012

Friday, June 15, 2012, Department of Homeland Security (DHS) Secretary Janet Napolitano issued a directive that may allow as many as 800,000 individuals to avoid deportation. Those who meet the new eligibility criteria may receive prosecutorial discretion that would permit them to remain in the United States for two years with a right to renew for additional two-year terms. Once DHS permits an individual to lawfully remain in the United States, that person could then seek to obtain work authorization documents. This policy change will accomplish portions of the Development, Relief, and Education for Alien Minors (DREAM) Act, legislation that has stalled in Congress.

The DHS directive establishes the following mandatory eligibility requirements for individual applicants:

Came to the United States under the age of sixteen;

Have continuously resided in the United States for at least five years preceding the date of this memorandum [June 15, 2012] and are present in the United States on the date of this memorandum;

Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;

Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and

Are not above the age of thirty.

Individuals seeking to qualify must provide verifiable documentation to DHS demonstrating that they meet the criteria and also must pass a background check. Eligibility will extend to those individuals who are encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection, or U.S. Citizenship and Immigration Services (USCIS); individuals who are presently in removal proceedings; and individuals who are not currently in removal proceedings. Even if a person meets the criteria, discretion is still applied on a case-by-case basis.

While the substance of the directive is effective immediately, ICE and USCIS must begin implementation processes within 60 days. Individuals who have questions or seek further information should visit the USCIS, ICE, or DHS websites. Beginning Monday, June 18, 2012, individuals may also call the USCIS's hotline at 1-800-375-5283 or ICE's hotline at 1-888-351-4024 to obtain further information.

In issuing the directive, Secretary Napolitano also stated that the new directive "confers no substantive right, immigration status or pathway to citizenship. Only Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law."

Employers should be cautious in their response or assistance to employees regarding this new directive. Since employers are required to establish the identity and employment verification of its workforce, encouraging employees to take advantage of this new program for family members may signal that the employer actually knows or has constructive knowledge that the employee is not lawfully present in the U.S. As always, employers should consult with competent employment counsel to avoid the possibility of committing immigration law violations.